Unclaimed Territory - by Glenn Greenwald

About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

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Tuesday, February 28, 2006

To the list of conservative principles which are being tossed aside like yesterday’s trash in order to defend George Bush, let us add the ostensible virtue of “personal responsibility.” Remember those lectures we used to have to endure about how Americans are so coddled and selfish and lazy and don’t take “personal responsibility" for their actions and their failures? We were treated to stirring moral tributes like this:

Conservatives believe that traditional morality serves as the best protection against the ills that plague society. The government should encourage policies that promote morality and discourage immorality. Personal freedom demands personal responsibility, and liberty is no excuse for irresponsible behavior.

Sadly, self-proclaimed conservatives seem to have as little use these days for the virtue of "personal responsibility" as they do for their other discarded beliefs of the past -- such as distrust of the federal government, or their steadfast and loudly touted belief in the rule of law.

As pretty much everyone (including the Father of Modern Conservatism himself) now recognizes, the pet neoconservative project of invading and bombing Iraq in order to transform it into a pro-U.S. beacon of peace, stability and freedom is a wholesale disaster, an abject failure on virtually every level. The cost of our little adventure is incalculable and will be with us for a generation, at least – the destruction of American credibility; the indescribable weakening of our military which leaves us vulnerable to real threats and enemies; and the staggering cost in both money and lives. And in return for these incomparable harms, we have installed pro-Iranian Shiite theocrats in one of the Middle East’s most strategically important countries and have brought that region to the brink of full-scale sectarian war. A more destructive and complete disaster is hard to imagine.

For the last couple of years, the tactic of war proponents was to simply deny reality and pretend that the disaster in Iraq was just fiction, nothing more than the invention of an American-hating media. That little tactic isn’t working any longer. All but the hardest-core Bush loyalists have abandoned this war long ago. And anyone with eyes can see that our Iraqi project is a disaster – at best, it will achieve nothing in exchange for the incalculable costs our country has endured and will have to pay for a long time to come. At worst, it will ensure the opposite of our goals.

Finally forced to accept the reality of their failure, war proponents have only two choices left: (a) admit their error and accept personal responsibility for their horrendous lack of judgment and foresight, or (b) blame others for their failure while insisting, in the face of a tidal wave of evidence, that they were right all along. Guess which option these Shining Beacons of Personal Responsibility are embracing?

For the entire war, the Republicans controlled the White House and both houses of Congress. On virtually every matter relating to the war, the Congress deferred to the Bush Administration and “interfered” with nothing the Commander-in-Chief wanted. Bush followers have controlled every aspect of this war from start to finish. If they were looking for someone to blame for its failure, one would think they would look to those who controlled the war top to bottom, back and front. One would be wrong.

The finger-pointing began this weekend when Bill Kristol, unquestionably one of the most influential war proponents most responsible for our invasion, essentially acknowledged that his Iraqi project was failing by blaming the military for failing to fight the war hard enough. Just like the slightly modified Leninists that they are, neoconservatives are blaming the faulty and insufficiently loyal implementation of their theories for this failure while insisting that their theories remain pure and good (“Communism didn’t fail because it’s a wrong theory, but because it was poorly implemented by Stalin”).

In fairness to Kristol, he has been blaming Rumsfeld and the military for a couple of years now for the failure of the war. But that’s only because Kristol has long recognized that the war was failing, and got an early jump on his campaign to ensure that he is not stuck with the blame. The consequences which will be unleashed by a failed war effort in Iraq are astronomical. This war failure is killing George Bush’s presidency, and someone is going to be saddled with an extreme amount of blame and guilt over what has occurred.

What we see now are the rats on the sinking ship scrambling around desperately to point fingers in order to ensure that the blame and the consequences are heaped on someone – anyone – other than them. For Bill Kristol to go on national television and blame the Bush Administration and our country’s military for the failure of his war is an act that is as despicable as it is revealing of the true magnitude of the desperation of the war proponents.

And then we have those self-defenders who will sink a level lower than even the level to which Kristol descended by seeking to blame war opponents for the war’s failure. At least Kristol had the intellectual honesty and decency to try to shove the blame onto those who actually influenced the prosecution of the war (the Defense Department and the military). These "blame-the-war-opponent" types are actually trying to blame their own failures on people who control nothing and influenced nothing.

Unsurprisingly, a rather pure example of this cowardly refusal to accept responsibility for one’s mistakes has been offered up by the always self-justifying Bush apologist Jeff Goldstein, who shared this blame-shifting gem with us yesterday:

One of the important points made in this excerpt (the entire piece is available to subscribers only) is that a goodly portion of our success or failure in Iraq has ultimately to do with how we react in terms of either lending our support or leveling our criticisms against the campaign.

And this is (and has been) a crucial component of the war—one that many on the anti-war side are loathe to admit: that their constant naysaying, though it is well within their right to voice, has objectively hurt the war effort, particularly when the criticism incorporates carefully-crafted falsehoods many of the war’s critics know for a fact to be objectively untrue.

From my perspective, there comes a time when, having registered disagreement with the war, the war’s critics (and here I’m not talking about critics of individual strategical or tactical initiatives, but rather those who have been against the effort from the start) simply wait and—if things fail—rush to brag of their prescience and perspicuity. But in the meantime, actively working to undermine the effort by presenting our enemies with a rabidly partisan divided front (one of their chief aims, remember)—whether it be through suggestions that we are in Iraq “illegally”, or that the President “lied” to take us to war, or seemingly hoping, on a daily basis, that the whole thing devolve into a civil war—matters. And not just rhetorically.

One can bet the mortgage that we’ll be seeing a lot more of this over the next few months – between now and, say, oh, November or so. Those who insisted on this war, who started it, who prosecuted it, who controlled every single facet of its operation – they have no blame at all for the failure of this war. Nope. They were right all along about everything. It all would have worked had war critics just kept their mouths shut. The ones who are to blame are the ones who never believed in this war, who control no aspect of the government, who were unable to influence even a single aspect of the war, who were shunned, mocked and ridiculed, and who have been out of power since the war began. They are the ones to blame. They caused this war to fail.

The Chief Blame-Passer, the President who is blessed with Infallibility on the Big Issues, has already laid the groundwork for this blame-shifting by repeatedly reminding us of our obligation to engage in only what he deems “responsible debate” about the war, lest we embolden the enemy and undermine our war effort:

We face an added challenge in the months ahead: The campaign season will soon be upon us -- and that means our nation must carry on this war in an election year. There is a vigorous debate about the war in Iraq today, and we should not fear the debate. It's one of the great strengths of our democracy that we can discuss our differences openly and honestly -- even in times of war. Yet we must remember there is a difference between responsible and irresponsible debate -- and it's even more important to conduct this debate responsibly when American troops are risking their lives overseas. . . . .

When our soldiers hear politicians in Washington question the mission they are risking their lives to accomplish, it hurts their morale. In a time of war, we have a responsibility to show that whatever our political differences at home, our nation is united and determined to prevail.

Virtually every prediction the President and his followers made about this war has proven to be false, while virtually every prediction made by war opponents has proven to be true. The President and his followers controlled every part of this war with an iron fist, ignoring anything which their political opponents said and insisting on the right to exert full-scale, undiluted control over it. And now it has failed. And it’s everyone’s fault except theirs.

Pushing the teetering monster

(updated below)There were numerous comments expressing some questions about, and disagreement with, my observations yesterday regarding the FISA amendments proposed by the Specter bill. Many of those questions and diagreements highlight some broader and extremely important issues raised by the NSA scandal generally, so I wanted to address the most commonly made and significant objections:

(1) I am not in favor of the Specter bill and was not suggesting that the bill itself would be a good law. Quite the contrary. FISA is a carefully constructed legislative framework which balances the need to have our government aggressively engage in foreign intelligence surveillance while ensuring that the past abuses by our government of eavesdropping powers do not repeat themselves. It has worked extremely well for 30 years and it was amended in 2001 at the request of the Bush Administration in order to cater it to the modern communication technologies which the Administration claims are used by terrorists.

Until George Bush got caught breaking this law and needed a defense, nobody serious ever -- over the 30 years since its enactment -- suggested that FISA was unconstitutional or even problematic. The opposite is true: we defeated the Soviet Union while our government eavesdropped only in accordance with FISA, and George Bush lavishly praised FISA when it was liberalized in the aftermath of 9/11 as a tool which enables the government to "conduct court-ordered surveillance of all modern forms of communication used by terrorists . . . ."

FISA is a law which enables strong, aggressive eavesdropping while preventing abuse, and there is no need to change it -- certainly not fundamentally. The Specter legislation provides eavesdropping powers to the government which are far too permissive and which simply are not necessary.

But we have to live with reality and the reality is that this legislation has now been introduced by the Chairman of the Senate Judiciary Committee and, I’d be willing to wager a fair amount, many Democrats (and some, but not by many, Republicans) will be tempted to support it as some sort of illusory middle ground. I do not believe this bill has any real chance of being enacted because the White House will vigorously oppose it. But since wishing it away is not an option, one can try to find ways to use it for beneficial outcomes. That was the point of my post – not to praise the legislation but to identify ways that it can be beneficial in fueling this scandal and in highlighting the Administration’s true law-breaking motives.

(2) In response to my original post on Sunday about the Specter bill, many people suggested that this bill was the by-product of some sort of secret agreement with the White House designed to quietly end the scandal. Republicans would get on board with the Specter bill and the scandal would go away.

I do not agree with that analysis because this bill is nothing like what the White House wants and they will never support it. In many ways, it is the opposite of what the Administration wants, because it is based on the premise that the courts and Congress have substantial powers to regulate and oversee what the Administration does in these areas, and the Administration’s primary goal is to reject and kill the idea that the other branches have a role to play in limiting what the President can do. And, indeed, the reaction to Specter's bill from Bush followers was vehement, even angry, opposition -- precisely because it undermines the "principle" that George Bush has the power to break the law in the name of Al Qaeda.

That is why I believe that this bill can exacerbate the wedges among Republicans and fuel this scandal. There are many Republicans (I believe Specter is one) who take the Administration’s claims at face value and believe that they violated FISA not because (as I believe) they do not recognize any checks on their national security powers, but because they genuinely believed that FISA was too restrictive or cumbersome to allow them to engage in important counter-terrorism surveillance.

These Republicans will be disabused of that belief once it becomes apparent that the White House is not interested in FISA amendments but is only interested in solidifying its unilateral, unchecked power over all matters relating to national security, and will therefore reject any framework (no matter how much eavesdropping power they have) which entails any meaningful oversight or restriction on what they can do.

And it will become more apparent generally that this scandal is not a dispute over what the proper scope of the government’s eavesdropping powers should be. It goes far beyond that and raises a much more profound crisis. The scandal is not about eavesdropping and whether the President should be able to eavesdrop without warrants but about the rule of law and whether the President has, as he claims, the power to break the law. Anything that highlights that still under-appreciated point is something I find valuable and, for the reasons I explained, the Specter legislation (whether intentionally or not) does exactly that.

(3) From the beginning of this scandal, I have tried to emphasize that the Administration’s wrongdoing here is completely independent of whether or not they abused their eavesdropping powers by intercepting the communications of, say, journalists or political opponents rather than suspected terrorists. This is important to note because the Administration broke the law by eavesdropping on Americans without judicial oversight and approval, and that is true -- and it is unacceptable, scandalous and profoundly dangerous -- regardless of whether the Administration, in addition to breaking the law, also engaged in eavesdropping abuses.

This scandal is not dependent upon proving that the Administration abused their eavesdropping power. Right now, this is a law-breaking scandal. The scandal is that the President claims the power to violate the law and did so here by eavesdropping on Americans without the judicial oversight and approval which the law requires. If it turns out that the Administration abused its eavesdropping powers, then that is a second scandal – a separate eavesdropping scandal which would be extremely serious in its own right. But the NSA scandal arose not because of proof of eavesdropping abuses, but because of proof that the President broke the law. Repeatedly and deliberately.

We do not yet know how the Administration exercised these powers precisely because they eavesdropped in secret, without the oversight which American citizens required for eavesdropping. That’s why a Senate Intelligence Committee investigation is so imperative; it is one of the few real mechanisms for discovering whether the eavesdropping powers were abused.

But, while we do not yet know if the Administration abused its eavesdropping power, what we do know – for certain – is that the President broke the law because he has seized law-breaking powers. That fact, by itself, creates a serious governmental crisis and does not depend upon the independent issue of how the eavesdropping powers were used.

Every time I make this point, some people invariably react as though I am denying that the Administration abused its eavesdropping powers. That is not my point. I do not deny that the Administration abused its eavesdropping powers because I don’t know if they did or didn’t. Nobody knows, precisely because they eavesdropped in secret and without oversight. And given the history of eavesdropping abuses as well as the corrupt character of this Administration, I would not be surprised at all if they did engage in eavesdropping abuses, and would probably be surprised if they didn’t.

But I think it’s critically important to keep the law-breaking issue separate from the eavesdropping abuse claims. The President cannot be allowed to break the law no matter what motives he claims he has in doing so and no matter what conduct he engages in when breaking the law. We know the President broke the law and continues to do so, and that -- by itself -- presents a profound threat to our basic constitutional principles and to the rule of law, regardless of how the eavesdropping powers were exercised.

(4) Many commenters observed that the Specter legislation is useless because even if it became law, the Administration would simply violate it when they want just as they are violating FISA. I agree entirely - and, for me, that is the whole point that needs our exclusive focus.

A dispute over the proper scope of eavesdropping power and what evidentiary standards should be met to obtain eavesdropping authority is important, but it is a garden-variety political debate. What our country is facing – whether it realizes it yet or not – is far, far beyond that. As I said yesterday:

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide – in secret – to violate the law. That’s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

The public does not realize that the crisis we face is a crisis of the rule of law, borne of the fact that the President of the United States has expressly arrogated unto himself the power to break the law, and is exercising that power on numerous fronts, not only with regard toeavesdropping. The reason they do not yet realize this is because this scandal has been depicted – by the media and, infuriatingly, even by Democrats – as being an eavesdropping scandal, not a law-breaking scandal. As a result, debate has centered over whether the government should be eavesdropping, not over whether the President has the power to break the law.

I believe that making the public aware of the true issue at the heart of this scandal is the most important priority, by far. I have always said that I believe this scandal can be resolved the way it ought to be and that we can impose consequences on the President for his illegal conduct if public opinion demands that. And, in my view, the public will demand that once they realize that the President of the United States has expressly claimed that he has the power to break the law and is doing so.

We have a history in this country of punishing political officials who believe that they are above the law, and George Bush is no different. If anything, his extreme and ever-increasing unpopularity makes him more vulnerable than ever. Every recent poll, including yesterday’s CBS poll (.pdf), shows that a majority of Americans already believe that the President’s warrantless eavesdropping is illegal. The public, which does not trust George Bush at all, is primed to be convinced, and I believe they can and will be.

For many reasons, this campaign of persuasion will not come from Democrats in Washington or the media on their own. But it doesn’t need to. Pressure to hold the government accountable for its law-breaking and to reject claims of law-breaking powers is going to have to come from citizens expressing their refusal to accept these assaults on the principles of government that have made our country free, strong and great for the last two centuries.

The blogosphere is one tool, an extremely important tool, for reaching large numbers of citizens. Critically, it enables information to be communicated directly to other citizens en masse without the intervention of the establishment media, and independently enables concerted action without having to rely on some party apparatus or other clunky, obsolete, stagnation-producing mechanisms such as the beltway "advocacy organizations."

There are projects underway which, though in their incipient stages, can be significant in reaching large numbers of people and affecting how they view these matters. And as I’ve alluded to before, I have been developing a project which I think can be quite significant in shaping the public debate over this scandal specifically and the crisis of law-breaking generally which I will be able to announce (with a good deal of excitement) in a couple of days.

One of the many brilliant attributes of our system of government is that citizens really do serve as a meaningful check on government abuses, and they do so in endless, ever-changing ways. To recognize that fact does not require optimism -- just reality. Throughout our history, Americans have figured out methods for destroying corrupt institutions and smashing even the most ingrained practices and laws -- and when they could not find ways to do so, they invented new ones. Seemingly invulnerable and omnipotent political figures and movements have been destroyed, all as a result of the actions of citizens who have made large numbers of Americans aware of the need to act.

Whatever systems are in place are in place because they were constructed by human beings. Any systems built by human beings can be torn down and replaced just as easily as they were built. There is nothing invulnerable or omnipotent about the Bush movement or the systems which they have erected in order to fuel their agenda. It can be brought down just as easily as others like it have been destroyed.

All that is needed is for citizens to become aware of just how radical and dangerous their conduct is. It’s happening already, and there is no reason whatsoever to convince oneself of the futility of battling against it. Quite the opposite. There is every reason to believe that it is starting to teeter and just needs a good, hard push to fall and shatter.

UPDATE: The Senate Judiciary Committee is holding hearings today with a panel of professors and former government officials (including conservative Administration critic Bruce Fein and the odious defender of Bush law-breaking, Professor Robert Turner). According to Georgia at Kos, the proposed Specter legislation was at least one of the issues being discussed. I was unable to listen to the hearing, so if anyone finds where there is a transcript, I'd appreciate if you could post the link in Comments or e-mail it to me.

UPDATE II: Markos posted an amazing 50-state survey on the views of Americans regarding the NSA scandal -- and specifically their beliefs about whether George Bush broke the law. In 37 out of 50 states, a plurality believe that it is clear that Bush broke the law. The best state for Bush is Oklahoma, where only 42% believe that he clearly did not break the law - the highest number of any state which thinks that. In almost every state, between 20-25% believe it's not clear one way or the other, which demonstrates that scores of people are still open to being persuaded on this question (while a plurality, as every poll shows, already believes that Bush broke the law).

Monday, February 27, 2006

The potential benefits of the Specter legislation

(updated below)Having now carefully reviewed Sen. Specter’s proposed legislation to amend FISA (rather than just the amazingly incomplete and even misleading description of the legislation from yesterday's Washington Post article), I can say with confidence that neither this bill nor any modified version of it is going to be even remotely acceptable to the Bush Administration. And, in ways that may (or may not) be intended by Specter, this proposed legislation -- which the Administration is sure to reject -- can achieve the critical goal of highlighting the Administration's true motives in violating FISA.

As I have argued many times, this scandal arose not because the Administration has adopted some radical views specifically about its eavesdropping powers, but instead, this scandal, at its core, is based on the fact that the Administration has embraced the general theory that the President has the right to make decisions about all matters concerning national security without any limitation or "interference" from the Congress or the courts. The Administration did not eavesdrop in violation of FISA because it believed that the FISA standards were too restrictive or that the FISA process was too cumbersome. It eavesdropped outside of FISA because it believes it has the power to eavesdrop (or do anything else relating to national security) in total secrecy, without any judicial or Congressional oversight and without having to justify its actions to anyone.

For that reason, any legislation (such as Specter's) which simply liberalizes FISA standards but still requires judicial approval as well as judicial and Congressional oversight will be unacceptable to the Administration. The Administration has been and still is defending a general theory of unchecked Executive power, not a theory of eavesdropping. They don't care about tinkering with FISA standards. They care about the power to make national security decisions (including, but not limited to, eavesdropping) without any oversight or limitation. As a result, the Specter legislation will not be any more acceptable to them than the current FISA legislation is, and their rejection of it will only serve to highlight just how radical the Administration's position is -- something which, in my view, is a development that ought to be welcomed and encouraged.

While it is true that, as Marty Lederman noted yesterday, the burden which the Administration would have to meet in order to eavesdrop under the Specter legislation would be substantially lowered as compared to what FISA currently requires, it is also true that the legislation provides meaningful – one could even say stringent – mechanisms for both judicial and Congressional oversight, and vests the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration. For that reason, this bill is far from some magic bullet that will quietly resolve this scandal to the satisfaction of the Administration, because I do not believe the Administration can or will accept this legislation.

I want to first summarize the important highlights of this proposed legislation and then describe why I believe quite strongly that this legislation will not resolve anything and may even be quite beneficial in pushing this scandal forward. In sum, because the legislation does provide some meaningful oversight and some substantive restrictions on the President’s ability to eavesdrop on Americans, I don’t think the legislation itself is as pernicious as Marty Lederman suggests and I do not think the Administration will ever accept it.

Highlights of Specter's proposed legislation

In essence, Specter’s proposed legislation abolishes FISA’s requirement that FISA warrants be obtained for each eavesdropping target. Instead, the Administration would be free to eavesdrop without warrants as part of any warrantless eavesdropping program provided that it obtains permission for each such program from the FISA court -- permission which it must obtain every 45 days (Sec. 702(a)).

For any warrantless eavesdropping program the Administration wishes to implement, the Attorney General is required to submit an affidavit to the FISA court every 45 days detailing a wide range of information about the program (sec. 703(a)(1-14)), including:

(4) a statement that the surveillance sought "cannot be obtained by conventional investigative techniques" or by obtaining a FISA warrant;

(6) "the means and operational procedures by which the surveillance will be executed";

(7) a "statement of the facts and circumstances . . . to justify the belief that at least one of the participants in the communications to be intercepted" is an agent of a foreign power" or a "person who has had communication with the foreign power" and,

(14(D)) "the identity, if known, or a description of the United States persons whose communications. . . were intercepted by the electronic surveillance program."

Even under such warrantless eavesdropping programs, surveillance of a person without a warrant is authorized only for 90 days, after which a warrant is required (Sec. 703(a)(12)).

Specter’s bill requires submission to the FISA court for approval of all warrantless eavesdropping programs -- i.e., not only the specific warrantless eavesdropping program which the New York Times disclosed, but any and all currently illegal eavesdropping programs. It thus requires FISA court approval of the program "sometimes referred to as the ‘Terrorist Surveillance Program’ and discussed by the Attorney General before the Committee on the Judiciary . . . on January 6, 2006," and further requires "approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court." Sec. 702(e)(2).

For each program for which the Administration seeks approval, the FISA court is required to authorize the program if, in essence, it finds (Sec. 704(a)(2-3)) that the eavesdropping program is consistent with constitutional guarantees (i.e., the Fourth Amendment) and that:

there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.

But critically, beyond this provision, the legislation vests substantial discretion in the FISA court to determine "whether the implementation of the electronic surveillance program supports approval of the application . . . " (Sec. 704(b)).

In other words, the FISA court is required to compare the information obtained by the program to be approved for three prior 45-day periods to determine that it has been implemented in accordance with the proposal submitted to the FISA court by the Administration. The FISA court may approve of the program only if it finds that the "benefits of the electronic surveillance program" justifies its authorization, and that it is being implemented consistently with the proposal previously submitted to the FISA court by the Administration. If it does not so conclude, it can (and must) reject the application. That is rather substantial and broad discretion to vest in the FISA court.

There is also a provision in the legislation for Congressional oversight. Section 705 requires submission of a detailed report to the Chairs and ranking members of the Senate and House Intelligence Committees every 45 days. The report must include a description of the information obtained by the program and the means and procedures by which the information was obtained.

A few other notes about the legislation:

(a) it allows warrantless eavesdropping programs not only for international calls from or to the U.S., but purely domestic communications as well;

(b) it expressly excludes from the approval requirement pure data mining activities or the obtaining of information reflecting the details of one’s communications short of the content of the communications -- i.e., the requirements "do not apply to information identifying the sender, origin or recipient of the electronic communications . . . that is obtained without review of the substance of the electronic communication." Sec. 702(d)(2); and,

(c) this legislation is clearly intended to supplant, not supplement, Specter’s prior announced intention to require submission to the FISA court of the question of the program’s legality.

The Specter proposal will resolve nothing and may even be beneficial.

An analysis of Specter’s legislation must begin with the still-staggering observation that this legislation would become effective not merely by Congress enacting it (even over a veto), but instead, only by the President agreeing to be bound by the law.

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide – in secret – to violate the law. That’s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

Beyond this always-paramount crisis is the fact that the Administration, in light of the positions it has emphatically staked out, cannot possibly accept the meaningful limitations and oversight contained in the Specter proposal. The Administration has repeatedly claimed that national security requires that it be able to eavesdrop with total secrecy and without any limitations from the courts or Congress. It therefore cannot and will not accept a framework which imposes such limitations. The Administration's position will surely be similar to the comment made here last night by the bellwether Bush loyalist Bart:

No, its more unconstitutional overreach by the Congress. If I were the AG, I would recommend the President veto the law, ignore it if the veto was overridden and let the courts settle the constitutionality of FISA.

The Administration has another, independent problem in accepting anything like the Specter legislation. If the Administration accepts these FISA revisions, the glaring question will remain as to why the Administration did not simply seek these revisions previously from the GOP-controlled Congress instead of violating the law in secret. Accepting FISA revisions now will make clear that there was never a need to violate the law; the Administration simply could have requested changes to FISA and still eavesdropped in accordance with the law.

For these reasons, I believe that this legislation could actually achieve a good result for this scandal – in a sense, it calls the Administration’s bluff. From the beginning of this scandal, the Administration has claimed that it eavesdropped outside of FISA because the FISA standards are too restrictive and the FISA process too cumbersome to enable the eavesdropping it wants.

But the falsity of that excuse has been apparent from the beginning – because FISA is incredibly permissive, because the FISA court has rubber-stamped virtually every application it received, and because the Administration could have easily had Congress make any liberalizing revisions it wanted to FISA, but it never did so, opting instead to ignore the entire FISA framework when eavesdropping.

The reality that has long been apparent is that the Administration did not want – and still does not want – to have any oversight at all, or any approval requirements for its eavesdropping activities. Instead, it insists on the power to eavesdrop in secret, without anyone knowing whose communications it is intercepting and without having to justify the eavesdropping to anyone, let alone to some unelected judges.

The Administration does not care about loosening FISA standards and it never did. That’s why this Specter legislation does nothing for it. It cares only about one thing: the principle that the President is free to act without interference from Congress or courts when it comes to making decisions broadly relating to national security. Anything that undermines or negates that unchecked, unilateral power will be equally unacceptable to the White House.

As I’ve argued many times, this scandal really has nothing to do with the President’s eavesdropping powers. It has to do with the fact that the Bush Administration has embraced and insists upon implementing a system of Government where the President can act without limitation from the courts or the Congress. Its conduct in violating FISA is not due to any specific eavesdropping theories, but instead is a manifestation of those overarching theories of unchecked executive power.

Whether the Administration also violated FISA because it wants to eavesdrop in a way that is improper and abusive, or simply because they will not compromise the principal that they have the power to act without interference from the courts or Congress, the Specter legislation – or any framework which provides for any substantive oversight and limitation on its eavesdropping power – will never be, and can never be, acceptable to the Administration.

The Administration’s rejection of this liberalized FISA framework will reveal its true motives in violating FISA. The Administration did not eavesdrop outside of FISA because FISA is too cumbersome or restrictive. It eavesdropped outside of FISA because it does not recognize the concept of checks and balances on which our country is based, and it insists upon the unilateral and unchecked power to eavesdrop (and to do anything else broadly relating to national security) without any oversight or checks at all.

That startling fact needs more attention. What will surely be the Administration’s emphatic rejection of the Specter legislation will illustrate the Administration’s true motives in violating FISA and the radical nature of its beliefs about its own power. We need to have the debate over the Administration's seizure of unchecked power out in the open. To the extent the Specter legislation can accomplish that, it ought to be welcomed.

UPDATE: It is worth remembering that Congress, as part of the Patriot Act, gave the Administration all of the FISA amendments it asked for to liberalize FISA, and the Administration -- at roughly the same time -- still went ahead and violated FISA by eavesdropping outside of its framework. That fact alone ought to demonstrate that the Administration is not and has never been interested in liberalizing FISA. The Administration is interested in solidifying its law-breaking powers and insisting on the right to act without having to adhere to the law.

Sunday, February 26, 2006

Specter proposes a new law -- something called "FISA"

(updated below)This article from today's Washington Post is nothing short of surreal:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).

Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago. . . .

The draft version of Specter's bill, which is circulating in intelligence and legal circles, would require the attorney general to seek the FISA court's approval for each planned NSA intercept under the program. Bush has said the agency monitors phone calls and e-mails between people in the United States and people abroad when any of them is thought to have possible terrorist ties.

It is, of course, so disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them. Reading this article about Specter's proposed legislation is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks.

In fairness to Specter, one can conjure up a rationale for passing a law which requires (again) that the NSA program be conducted only with the FISA framework -- namely, that such a newly enacted law will negate the Administration's claim for future eavesdropping that the Congress gave the Administration an exemption to FISA via the AUMF (obviously, if Congress, subsequent to enactment of the AUMF, enacts a law specifically requiring any and all eavesdropping by the NSA to be conducted only under the purview of the FISA court, not even the Administration could argue that it remains exempted from FISA by virtue of the AUMF).

Regardless of the intentions, there are two glaring problems with Specter's proposed legislation. The first is that it renders the "rule of law" a meaningless illusion. Nothing in Specter's proposed legislation would release the Administration from liability or other consequences from their four-year history of intentional law-breaking, and, from what I know, he is still pursuing his legislation requiring that the question of the program's legaility be adjudicated by the FISA court.

Nonetheless, this new, proposed legislation would plainly endorse the excuse that there was something previously unclear about whether FISA warrants were required for the NSA eavesdropping - hence, the need for a new law. Not even the Administation claims that the eavesdropping in which they engaged on American citizens was outside the scope of FISA. There was nothing unclear about the law. It criminalized exactly the activities in which the Administration engaged, and no new law is needed.

The far bigger problem is that Specter's legislation ignores the actual crux of this scandal. As I've pointed out many times before, the problem we are confronting is not that the Administration specifically believes that it has the power to eavesdrop without warrants in violation of the law. It does believe that, but only as a manifestation -- a consequence -- of a much broader and more ambitious theory that vests in George Bush the power to break Congressional laws and act even in defiance of court orders on all matters relating to national security, broadly defined.

Therefore, even if Congress were to pass a law such as Specter's aimed specifically at this NSA program, the Administration has already made quite clear that it believes it has the power to violate that law. Alberto Gonzales told the Senators right to their faces that the Administration never bothered to seek approval from Congress to engage in wireless eavesdropping outside of FISA -- and that it is unnecessary for it to do so in the future -- precisely because Congress has no power to restrict what the President does.

Specter's new law would be treated by the Administration as being just as irrelevant and optional as it has treated FISA. Enacting a new law which the Administration is claiming it has the right to ignore is an exercise in futility and idiocy. The Administration has seized the power to break the law. Until that problem is resolved, Specter and his distinguished colleagues and friends in the Senate can pass all of the laws they want, but those laws will continue to be viewed by the Administration as optional suggestions which can be followed if the Administration wants to, rather than actual laws that compel adherence.

I actually think that the Administration's theories vesting George Bush with law-breaking powers are so radical and dangerous that people like Specter can't get themselves to actually accept that the Administration has really embraced these theories and is living them. Notwithstanding the fact that the Administration has expressly advocated these positions in numerous instances in many different contexts over several years now, it's as though people in Congress -- and the media -- think they're not really serious about believing them. I wonder what else needs to be revealed about the Administration's law-breaking for people to start realizing that this Administration really does not only believe that George Bush has these law-breaking powers, but also that they have been exercising those powers for quite some time now and have vowed to continue to do so.

UPDATE: My analysis here of Specter's legislation was based on the description of the proposed bill by the Washington Post article, rather than a reading of the proposed bill itself (which I wasn't able to find online yet). As a result, suggests the always insightful Marty Lederman, I actually under-stated how pernicious this legislation is and erred in some of what I said about it.

I intended not to do a lot of blogging today, so I will have a lot more to say about this tomorrow. Marty has obtained and posted Specter's draft legislation, which I have now read (though not carefully). It does indeed go far beyond simply bringing the NSA program within the purview of the FISA court. What it does is authorize the entire warrantless eavesdropping program itself by directing the FISA court to approve of it every 45 days provided some extremely permissive criteria are met, and in the process, allows eavesdropping without case-by-case warrants. In other words, as Marty points out, it renders legal the lawless NSA program and simply requires the FISA court to rubber-stamp its approval for the program every 45 days.

Nothing in the legislation grants immunity to the Administration for prior lawbreaking, nor would it preclude the legislation Specter said he intended to introduce of requring the FISA court to adjudicate the legality of the program. Clearly, though -- as several commenters in the thread after this post speculated -- Specter's intent seems to be to create an illusion of FISA court oversight over this program while handing the Administration legal cover for its previously illegal behavior. As I said, I'll post a lot more on this tomorrow.

Saturday, February 25, 2006

Prepare the noose for Bill Buckley, the Cowardly Traitor

(updated below)An important and long-overlooked point about the depravity, corruption and truly un-American impulses which define so many Bush followers is revealed by a comparison of these two statements:

Saying the "idea that we're going to win the war in Iraq is an idea which is just plain wrong," Democratic National Chairman Howard Dean predicted today that the Democratic Party will come together on a proposal to withdraw National Guard and Reserve troops immediately, and all US forces within two years. . . .

"I've seen this before in my life. This is the same situation we had in Vietnam. Everybody then kept saying, 'just another year, just stay the course, we'll have a victory.' Well, we didn't have a victory, and this policy cost the lives of an additional 25,000 troops because we were too stubborn to recognize what was happening."

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. . . . .

[Bush] will certainly face the current development as military leaders are expected to do: They are called upon to acknowledge a tactical setback, but to insist on the survival of strategic policies. Yes, but within their own counsels, different plans have to be made. And the kernel here is the acknowledgment of defeat. . . .

These statements, made within a little over two months of each other, are almost identical. If anything, Buckley's statements are a much more emphatic declaration of defeat.

When Dean stated two months ago that we were not winning in Iraq and could not win, Bush followers trotted out their common but literally deranged rhetoric of accusing anyone who opposes the war in Iraq (or Bush terrorism policies) of being a coward, of committing treason, and being a traitor to their country. Indeed, since 2002, Bush followers have been regularly accusing their political opponents who oppose that war of subversion and treason, even as a majority Americans have come to oppose the war in Iraq.

In light of Buckley’s comments, let’s review some of the reaction among Bush followers to Dean’s identical comments about Iraq just two short months ago:

The unified message from the President and GOP surrogates is, "Victory! Elections! They stand up, we stand down!" The message from at least the Dean wing of the Democratic party is, "Withdraw! Defeat! Withdraw! Defeat!"

I think any statement from a national leader that sounds like, "we have been defeated in Iraq" is political nitroglycerin. Families of the troops will be livid at the suggestion that their sons and daughters have failed to achieve their mission.

Much of the language of the "loyal opposition" has been anything but loyal. . .

Howard Dean, the head of the DNC, averred in December that the "idea that we're going to win the war in Iraq is an idea which is just plain wrong."

At some point, opposition must be considered disloyal. At some point, the American people must say "enough." At some point, Republicans in Congress must stop delicately tiptoeing with regard to sedition and must pass legislation to prosecute such sedition.

And then here was Michael Reagan-- who just happened to appear as guest host on Hannity & Colmes last night, appropriately sitting in for Sean Hannity -- issuing this death sentence for Howard Dean due to Dean's observation (now echoed by Bill Buckley) that we are not winning in Iraq:

Michael Reagan, son of the late President Ronald Reagan, is blasting Democratic National Committee Chairman Howard Dean for declaring that the U.S. won't be able to win the war in Iraq, saying Dean ought to be "hung for treason."

"Howard Dean should be arrested and hung for treason or put in a hole until the end of the Iraq war!" Reagan told his Radio America audience on Monday. Reagan was reacting to Dean's comments earlier in the day, when the top Democrat said that the "idea that we're going to win the war in Iraq is an idea which is just plain wrong."

All of these declarations of treason and calls for criminal prosecution against Dean were based exclusively on his statement that we were not winning in Iraq -- exactly the same statement Buckley made yesterday.

This grotesque exploitation for domestic political gain of patriotism, loyalty and bravery is the single most frequently used rhetorical tactic of Bush followers over the last five years. During this same time, we have been hearing all sorts of complaints about the "Angry Left." Similarly, that the "lefty blogosphere" is composed of enraged, epithet-spewing cretins has become the newly unveiled conventional wisdom among the status-threatened establishment media. And yet, it has become so common as to be routine for Bush followers to stridently accuse their domestic political opponents of being cowards, subversives and traitors, and, increasingly, to call for their imprisonment and/or execution.

While Michael Reagan’s statement about Dean surely was -- in one sense -- one of the single most despicable comments from any political figure in the last decade (and was condemned by virtually nobody), in another sense his comment was not really all that notable. Bush followers have made it a regular staple of our political dialogue for critics of the war in Iraq and/or Bush’s terrorism policies to be accused of subversion and treason.

This is a real question: by the standards which have become commonplace among Bush followers, isn’t Bill Buckley clearly a traitor? We are (of course) in the middle of a war. That war (in Iraq) is the central front in another war we're fighting (the War on Terror, a/k/a the War of Civilizations, World War III, World War IV, the Long War). To surrender in Iraq is -- to use the White House's formulation -- to "surrender to the terrorists." Bill Buckley is clearly on the other side - the side of terrorists. And what a coward he is.

Worse, there are American troops in harm’s way and here is Bill Buckley declaring that Bush has lost the war and should acknowledge America's defeat. Doesn’t Buckley owe the troops an apology? He should be spat on by the families of those troops.

This really is the lowly point to which Bush followers have dragged this country. To oppose the American war in Iraq -- a war that is turning out to be the greatest and most disastrous strategic mistake this country has ever made – has long been sufficient for one to be branded a coward and a subversive. To question the President’s policies on terrorism has resulted in even more severe accusations.

Bill Buckley has now unmasked himself as a cowardly, anti-American ally of Al Qaeda. He wants to wave the white flag to terrorists, and has sabatoged the Commander-in-Chief’s war effort by declaring it a failure. Shouldn’t we bring criminal charges against Buckley, along with demands that he be hanged? On what ground can any of the Bush followers who have long equated opposition to the war with subversion and treason -- and who branded Howard Dean a traitor for a statement identical to the one Buckley made -- oppose those efforts?

The great patriot and American hero Ben Shapiro can prepare Buckley’s noose while that brave American warrior Michael Reagan places the hood over his head and those lovers of American values Michelle Malkin and John Hinderaker lead the throngs as they yell "traitor" and "coward" at Buckley while his neck snaps. That’s the horrendous image which has come to represent the sad, almost-psychotic state of political dialogue which Bush followers have imposed on our country. And that’s just one of the comparatively small harms which the Bush movement has inflicted on America which is going to take quite some time to repair.

UPDATE: As much as they want to, Bush followers can't revoke Buckley's credentials as a conservative since . . . well, he sort of invented conservatism. So, instead, they are now declaring that conservativsm is different than the Bush movement -- something I've been arguing (to the dismay of Bush followers) for quite some time.

Today's opinion piece by William F. Buckley, the father of American conservatism, highlights the difference between traditional conservatives and the Bush Administration's efforts in foreign policy, along with a host of other arenas.

Bush 43 is not a conservative in foreign policy, at least since 9/11 taught him that genocidal tyrannies in Southwest Asia could produce immediate and existential threats to the American homeland. He has been much closer to Woodrow Wilson than his father or even Ronald Reagan in his reaction to the world.

Bush, of course, is not a "conservative" in domestic policy either, as his record deficit spending, including discretionary non-security-related spending, rather conclusively demonstrates.

As this confession from the Captain reflects, when forced to choose between conservative principles or loyalty to Bush, Bush followers will expressly toss conservativsm overboard and disclaim an association with its principles. I'm pretty sure that was the central theme of an argument I made a week or so ago (entitled "Do Bush Followers Have a Political Ideology?") upon which Bush followers heaped such enraged scorn. It seems that they're coming around to this view, all in a week's time.

That's what will happen when the Father of the political ideology to which they have deceitfully proclaimed allegiance publicly proclaims the crown jewel of the Bush movement to be an abject failure. "It doesn't matter that Buckley says that, because we're not conservatives; we're Bushites." Exactly.

UPDATE II: I have a post up today at Crooks and Liars examining the question of whose judgment was more accurate and wise with regard to Iraq -- Howard Dean's or George Bush's? As their pre-war predictions reveal, it's not exactly a closely contested competition. This matters greatly because we have a serious crisis on our hands in Iraq and Americans must decide whose judgment they believe is entitled to respect with regard to what we ought to do now.

Friday, February 24, 2006

A dying Presidency

(updated below)

George Bush's presidency is in deep trouble. He is vulnerable on every front, including within his own increasingly fractious party. While polls have long indicated that all Americans beyond his alarmingly loyal "base" have abandoned him, even that base is beginning to turn on him. None of his old tricks are working, and the new ones are backfiring.

As Taylor Marsh notes, a new poll by Rasmussen Reports (the polling outfit most trusted by Bush followers) was released today, and it contains not bad news, but panic-inducing news, for Bush and his followers:

For the first time ever, Americans have a slight preference for Democrats in Congress over the President on national security issues. Forty-three percent (43%) say they trust the Democrats more on this issue today while 41% prefer the President.

The preference for the opposition party is small, but the fact that Democrats are even competitive on the national security front is startling. In Election 2002, the President guided his party to regain control of the Senate based almost exclusively on the national security issue.

If Republicans don't have an electoral advantage on national security, what do they have? (To witness a little spastic panic from Bush followers, see here). And after two months of endless attacks on the President's lawless eavesdropping -- after which his approval ratings are pitifully low and Americans now distrust him even with regard to national security -- can we at least have those genius Democratic consultants stop announcing to the world that pursuing the NSA scandal will destroy the Democrats' electoral chances by making them look weak on national security?

And Rasmussen has very bad news for Bush followers beyond just this startling national security data. The lopsided disapproval of Bush by Americans which has long been reflected in every other poll is now reflected by Rasmussen as well:

Forty-four percent (44%) of American adults approve of the way George W. Bush is performing his role as President. Fifty-four percent (54%) disapprove.

Worse (for Bush followers), of the paltry 44% who approve of Bush's performance, only 23% strongly approve, as contrasted with the 38% who strongly disapprove. That means that not only do far more Americans disapprove of his performance than approve, but the disapproval is more intense and more strongly felt than is the approval.

At some point, won't it be difficult for Bush followers and their media allies to keep depicting Bush critics as fringe, deranged freaks, given that a solid majority of Americans are now Bush critics? And, as a corollary, won't it be equally difficult to continue to suggest that anyone who opposes Bush's policies on the war in Iraq or terrorism is a subversive and a traitor, given that this category, too, clearly includes a majority of Americans?

As the 2006 elections approach, Congressional Republicans are going to engage in increasingly strenuous efforts to show independence from this unpopular President by stepping up the attacks and defying the White House more and more. It won't work. The "Republican" brand has been marketed for the last five years as an indivisible, Bush-based product, and the only result which will come from their attempts to extricate themselves from the President to whose apron strings they have been so tightly attached is to increase even further the appearance of confusion, disarray and desperation.

There will be a temptation on the part of Democrats to simply sit back and watch all of this fratricide take place. And that would not be an unreasonable strategy. There is an old courtroom adage which advises that one ought to not get in the way when the other side is self-destructing. When one's adversary in a courtroom is digging himself a deeper and deeper hole with the judge, the last thing you want to do is interfere.

But now is not the time for passivity. Democrats need to step up the aggression now more than ever and take advantage of this wobbly, weakened President. Now is exactly when the Democrats need not fear anything. Americans have abandoned Bush. They no longer trust anything about him - not his integrity, his veracity or his competence. Not even his ability to protect them. And he will not even have Congressional Republicans to protect him, as they will be looking for ways to distance themselves as much as possible.

The absolute worst thing the Democrats could do now is follow the advice of the chronic loser Beltway consultants who excessively calculate every step and drain the life, principle and passion out of everything they touch. More than anything else, what accounted for Bush's popularity in the past (which is where his popularity lies) was the fact that he projected firm, resolute conviction about things that he espoused. It's time for Democrats to demonstrate that attribute as well. Taking an emphatic stand for the principle that the President does not have the right to break the law would be a good place to start.

UPDATE: The father of modern conservatism, William Buckley, may have been one of the people polled by Rasmussen. He announced today that our mission in Iraq has failed:

One can't doubt that the American objective in Iraq has failed. The same edition of the paper quotes a fellow of the American Enterprise Institute. Mr. Reuel Marc Gerecht backed the American intervention. He now speaks of the bombing of the especially sacred Shiite mosque in Samara and what that has precipitated in the way of revenge. He concludes that “The bombing has completely demolished” what was being attempted — to bring Sunnis into the defense and interior ministries.

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. The great human reserves that call for civil life haven't proved strong enough. No doubt they are latently there, but they have not been able to contend against the ice men who move about in the shadows with bombs and grenades and pistols. . . .

The accompanying postulate was that the invading American army would succeed in training Iraqi soldiers and policymkers to cope with insurgents bent on violence. This last did not happen. And the administration has, now, to cope with failure. . . . .

He will certainly face the current development as military leaders are expected to do: They are called upon to acknowledge a tactical setback, but to insist on the survival of strategic policies.

Yes, but within their own counsels, different plans have to be made. And the kernel here is the acknowledgment of defeat.

A few months ago, when Howard Dean said that he thought we would be unable to fulfill the mission in Iraq as Bush has described it, he was denounced as a traitor and Ronald Reagan's son urged that he be hanged -- literally. And yet, now we have William Buckley saying that our mission failed and it's time for Bush to acknowledge defeat. Will they hang him, too? Once we hang all the tratiors and subversives who have abandoned Bush, there sure won't be many people left.

The Kansas Project

(updated below - updated again) We are beginning our state-based NSA campaign today by targeting six or seven of the most important newspapers in Kansas, to which the individuals who are participating will submit Op-Ed pieces and Letters to the Editor (everyone is still encouraged to participate). The principal goal is to urge an investigation by the Senate Intelligence Committee and its Chairman, Sen. Pat Roberts, into the NSA scandal. A little bit later today, Jane Hamsher will post details about the logistics and information for submissions, and I will provide the link here when her post is available (update: link is furnished below in the Update section).

The letters and editorials should be individually formulated and expressed (and also should bear a Kansas address), but, to ensure that we have a clear and focused message, the following points can be emphasized by those writing letters and Op-Ed pieces (if there are any suggested additions or revisions, please leave them in Comments):

Independent of one’s political party, it is vitally important that Congress, and specifically the Senate Intelligence Committee, fulfill its important oversight duties by holding hearings on the scope and reach of the Administration’s warrantless NSA eavesdropping on American citizens. Americans deserve an investigation by our Congress into this eavesdropping, which took place without any oversight, so that we are informed about what our government did and can make reasoned judgments about these important issues.

Concern over the legality and necessity of warrantless eavesdropping on Americans cuts across party and ideological lines. Numerous prominent conservatives -- including Grover Norquist, George Will, former Rep. Bob Barr, and Kansas Sen. Sam Brownback –- have expressed serious objections to the notion that the Government should eavesdrop on American citizens without any oversight at all. The conflicts raised by warrantless eavesdropping are not partisan or ideological, but instead, implicate the most important constitutional safeguards on which our system of government is based.

We all favor strong and aggressive eavesdropping against terrorists. The question which requires Congressional scrutiny is why the Administration eavesdropped without the judicial oversight which the American people, through our Congress, required by law. The purpose of this law was to ensure that the Government cannot abuse its eavesdropping powers (as it has in the past) when eavesdropping on American citizens. Because the Administration eavesdropped without this judicial oversight, only Congressional hearings can enable Americans to learn whether the eavesdropping was properly conducted.

Regardless of one’s political orientation, the NSA program has provoked intense controversy among Americans. Recent polls show that half of all Americans believe that the program violates the law and is wrong. Thus, on a matter of such importance which is dividing our country, both sides in the debate would be well-served by bringing facts to light, a result which can be achieved only if the Senate Intelligence Committee holds hearings on these matters.

As demonstrated by this week’s controversy over President Bush’s decision to turn operations of some of this country’s most important ports over to the United Arab Emirates, Congress has a critically important role to play in exercising oversight over the Executive branch, even in areas of national security. Our nation was founded on a system of checks and balances because even well-intentioned political officials are prone to errors in judgment.

By ensuring that the branches of Government oversee and check one another, our Founders created a system where errors in judgment and abuses are minimized. Particularly on matters as important as defending our country from terrorist threats and eavesdropping on Americans by the government, those core American principles compel oversight and hearings by our Congress.

Numerous Republicans and Democrats have called for the Senate Intelligence Committee to hold hearings. Sen. Roberts made public commitments to hold such hearings, which can be structured so as to prevent disclosure of operational details which should remain secret. The American people are entitled to be informed about these matters, and we urge Sen. Roberts to fulfill his duties of Congressional oversight and hold meaningful hearings on this matter.

UPDATE: Jane has now posted the contact information for Op-Eds and Letters to the Editor here. It was compiled by the tireless Thersites at Vichy Democrats, who has some more thoughts here. Right-wing radio expert Taylor Marsh has some creative ideas about how to use the Portgate controversy to make these NSA points more effectively, particularly when calling into talk radio.

Finally, in response to some (understandable and common but, in my view, ultimately misguided and quite harmful) scepticism about campaigns such as this, I explain my reasons here why I think projects like this one are worthwhile despite the obvious obstacles.

UPDATE II: Josh Rosenau is a Kansan blogger and a graduate student at the University of Kansas. He has some excellent thoughts that really are worth reading on the NSA scandal generally, along with suggestions for which newspapers to contact and some additional ideas about how to make these points effectively. He also says this:

If you've moved out of Kansas, but want to write to the local paper where you used to live, that's just fine. Mention where you used to be. If you aren't from Kansas and don't want to be left out, either write to your own local paper, or think creatively about a connection you have to Kansas.

Josh makes an important point. What matters is not necessarily that you live in Kansas right this minute, but that there be some Kansas connection, such as a Kansas address, reflected in the letters and Op-Ed pieces.

Thursday, February 23, 2006

Bush followers masquerade as free press advocates while attacking freedom of the press

On the list of threats to our constitutional liberties, the fact that we have a President who has literally seized the power to violate our laws is at the top. But immediately underneath it on the list, in my view, is the concerted and escalating attacks launched by the Bush Administration and its followers on the press’ ability to report on the Administration's conduct. That is why it is so astounding and so grating to see William Bennett parading around as a brave crusader for a free press in his Washington Post Op-Ed today, where he (futilely) drags along Alan Dershowitz with him for cover and credibility.

According to the Op-Ed, "the press has betrayed not only its duties but its responsibilities" by not publishing the Mohammed cartoons. We are then subjected to one of the most nakedly hypocritical statements one will ever encounter:

[O]ur general agreement and understanding of the First Amendment and a free press is informed by the fact -- not opinion but fact -- that without broad freedom, without responsibility for the right to know carried out by courageous writers, editors, political cartoonists and publishers, our democracy would be weaker, if not nonexistent. There should be no group or mob veto of a story that is in the public interest.

As I’ve said before, I believe the press ought to publish those cartoons as a means of defending their right to publish ideas free of intimidation and attack. But the very last people from whom we ought to be hearing sermons about the importance of free expression and a free press -- and about the accompanying duty of the press to publish even those ideas which provoke controversy, outrage and offense -- are Bush supporters, who are plainly engaged in a serious crusade to punish any journalists who express ideas which they dislike or which they believe produce undesirable consequences.

And of all the free-press-attacking Bush supporters, the very last one who has any basis for masquerading as a free press advocate is Bill Bennett, who has built a bloated career over several decades waging war on free expression and a free press, while attempting to compel suppression of ideas he finds offensive. Let us count the ways a free press is under vicious attack by the very people lecturing us about the grave threat to freedom posed by the Mohammed cartoon episode.

As I’ve written about before, the Bush Justice Department is now aggressively pursuing a criminal investigation into disclosure by The New York Times of the Administration’s decision to violate the law when eavesdropping on Americans. The DoJ’s investigation is targeted not only at the individuals in government who disclosed these violations but also at the Times itself, along with the individual journalists responsible for the disclosure, including reporter James Risen and NYT editor Bill Keller. Put simply, the Administration is threatening American journalists with imprisonment for doing exactly what the First Amendment is designed to ensure they can do – namely, report on controversial and legally dubious government actions against American citizens which the government attempts to conceal.

As a result, the demand by Bush followers for the criminal prosecution of The New York Times and the individual editors and reporters responsible for that story has now reached the level of "conservative" conventional wisdom. The influential neoconservative magazine Commentary this month published a long piece calling for criminal prosecution of the Times, Risen and Keller under the Espionage Act of 1917.

Following along, Scott "Big Trunk" Johnson of Powerline wrote an article in the Weekly Standard which he described this way:

The Weekly Standard has posted my column on the laws that govern the disclosure of the NSA program by the New York Times: "Exposure." I argue that the New York Times should be at considerable risk of criminal prosecution under the espionage laws for its disclosure of the NSA surveillance program. Moreover, the individuals at the Times responsible for its conduct in this matter -- James Risen, Bill Keller, Arthur Sulzberger, Jr. and others -- are in plain view. No extensive investigation is necessary to identify them.

Others who are parading around in disguise as free press advocates when calling for the publication of offensive cartoons they like, such as Michelle Malkin, The American Spectator, and others, have favorably cited the Commentary piece and/or joined in these calls for the imprisonment of the NYT journalists. Such principled crusaders for a free press they are.

It is critical to note that these increasingly strident calls for the criminal prosecution of journalists who published one of the most politically damaging stories of George Bush’s presidency are being issued in concert with a concerted effort by the Bush Administration to shape the criminal law so as to enable the criminal prosecution generally of journalists who inform the public of activities which the Administration wants to conceal.

As Fred Kaplan recently described in his vitally important article in Slate, the Justice Department is relying upon a novel and radical theory of the Espionage Act in the Larry Franklin/AIPAC spying case to prosecute not only the government employee (Franklin) who passed classified information to pro-Israeli lobbying groups, but also the private individuals who received that classified information. In other words, the Bush Administration is seeking to criminalize the very act which defines what an investigative journalist does and has always done in America:

An espionage trial about to begin in Alexandria, Va., could threaten the whole enterprise of investigative journalism. . . .

They [the private citizens who received the information are] charged with giving classified information not to foreign governments or spies but rather "to persons not entitled to receive it."

This is what journalists do routinely every day. . . . Still, if some attorney general were to view this case as a precedent, he could go after whole newsrooms on the grounds that the reporters and editors had "reason to believe" the information might be used to harm the United States or to help another country.

As Walter Pincus reported in The Washington Post (h/t Kevin Drum), the DoJ has constructed its case against these private citizens with the clear intent of laying the legal groundwork for being able to criminally prosecute any journalists who receive classified information – an attack on the very heart and soul of what our free press does in fulfilling its watchdog function over the Government:

A lawyer familiar with the AIPAC case said administration officials "want this case as a precedent so they can have it in their arsenal" and added: "This as a weapon that can be turned against the media."

So while Bush followers warn that a free press is threatened because some newspapers decide not to publish cartoons that are offensive to Muslims, the Bush Administration is threatening journalists in this country with imprisonment for publishing politically embarrassing stories, and is implementing legal theories to enable it to criminally prosecute American journalists who receive any information which the Government deems "classified." It is genuinely hard to imagine a more fundamental threat to a free and vibrant press than this.

Time and again, Bush supporters -- who masquerade as free press advocates when it comes to offensive or provocative ideas with which they agree -- have viciously attacked the press and accused them of engaging in subversive and even treasonous activities for a whole host of reasons -- from publishing Abu Ghraib photographs to reporting on torture and abusive treatment of Muslims at Guantanamo to warning about the escalating violence and the ever-deteriorating situation in Iraq. We are told that the press ought to refrain from publishing even true reports and images reflecting U.S. misconduct -- and is even guilty of subversion and treason when they do so -- because publication makes the U.S. look bad in the eyes of the world or undermines our "war effort."

The second example [of the "Left hurting America"] was a federal judge appointed by former President Bill Clinton ordering the Defense Department to release all remaining photos of prisoner abuse by Americans at Abu Ghraib prison. Though it is certain that the only effect of the photos will be to further endanger Americans at home and abroad and increase the danger to American troops in Afghanistan and Iraq, and though there is absolutely no need for the public to see these photos, the judge ordered their release.

So, to recap so far: publishing stories which inflame Muslims by reporting on American abuses at Guantanamo is wrong and subversive and ought be suppressed. Anyone who states that Iraq is disintegrating and our war effort is failing is harming the troops and is a traitor who ought to be treated as such. Images which depict grotesque acts by the U.S. military are dangerous and their publication is treasonous. But when it comes to anti-Muslim cartoons which are at least as provocative and inflammatory, consequences be damned; lofty principles of a free press demand that they be published and published widely regardless of the reactions.

These demands by Bush followers that ideas be freely expressed without restraint are extremely selective – they want the ideas they like to be disseminated widely and aggressively but ideas which they dislike to be suppressed. In general, when one espouses standards and principles which one applies only selectively and in a self-interested manner, the result is just garden-variety hypocrisy. But when principles of a free press are applied selectively -- such that one urges some ideas to be vigorously safeguarded while other ideas be aggressively suppressed -- it is not merely hypocritical, but incomparably pernicious, because what is really being sought, by definition, is a system of laws and rules which exist to propagandize.

That is exactly the project which Bush followers (spearheaded by their neoconservative chapter) are relentlessly pursuing with their simultaneous attacks on the press (when it comes to ideas which undermine their agenda) and cynical defense of unrestrained expression (when it comes to ideas which promote that agenda). But a press which exists to disseminate anti-Muslim ideas but which must refrain from publishing ideas that reflect poorly on the U.S. or the Administration is not a free press. That is a Pravda-like propaganda arm of the state which exists to glorify the government and promote its aims. That is plainly what these Bush followers are trying to institute.

It is worth remembering that Bush followers have a long and clear history of advocating suppression of ideas which they dislike. Here is Jonah Goldberg -- in an article entitled: "Censorship. Just do it." -- reminding us of the belief in the suppression of ideas which lies at the heart of the Bush movement, including by newfound free expression advocate Bill Bennett:

You don't have to dust off your books by William Bennett and George Will to understand that it is an indisputable fact that the Founding Fathers believed the good character of the citizenry was essential to a healthy republic. And, they believed, laws crafted at the local level — including censorship — could and should be aimed at maintaining good character.

And here is Bill Bennett himself, in the wake of the controversy surrounding Janet Jackson’s breast, advocating government penalties against Howard Stern for expressing bad, inappropriate thoughts and urging increased penalties from the Government for those who express ideas which Bennett thinks are offensive and wrong:

Yes, there are government instituted fines for indecency—and they likely influence private decisions. But that is to the good, just as there are fines for other kinds of public polluting—the effect of which does encourage private corporations and individuals to act more responsibility; to not trash the streets, the air, or the culture. Indecency fines are effective to be sure, and they probably should be increased.

In the same essay, Bennett explains that "censorship" only exists when the government bars the expression of ideas, not when private media entities cave into pressure and refuse to publish them on their own. Back then -- when it came to the suppression of ideas that he disliked -- Bennett insisted that there was nothing disturbing at all about private media entities refusing to publish provocative or offensive ideas in response to public outrage -- the very opposite of the argument he advanced this morning in the Post. In fact, for years Bennett has been working to pressure media entities -- including with threats of legislation and fines -- to refrain from publishing ideas Bennett finds offensive.

Attacks on the expression of controversial and provocative ideas is a core principle of this strain of self-identified "conservatives." A pro-censorship cover story by David Lowenthal was published in The Weekly Standard which was entitled "The Case for Censorship" (a chapter in Robert Bork's best-selling book bore the same name and expressed the same pro-censorship views). Bennett himself praised Lowenthal's pro-censorship article by writing: "I agree with much in professor Lowenthal's article," but concluded that censorship would be difficult to implement because of the public opposition it would provoke.

What is going on here could not be clearer. A free press is one of the few remaining checks on our government. People like Bennett want to compel the press to publish ideas which they like by disguising their demands under a banner of a principled belief in a free press – a belief which immediately disappears when the press publishes ideas that they dislike or which are politically damaging to the President, in which case the press should be attacked as subversive and treasonous and even be criminally prosecuted by the Bush Administration.

While Bennett decries the unwillingness of the media to stand up to Muslim mobs, the press has been deafeningly silent about the Justice Department's threats of criminal prosecution against the NYT and the Administration's legal maneuverings to enable further attacks of criminal prosecution on investigative journalism generally. Genuine advocates of a free press would be highly alarmed, and outraged, not only by the self-censorship of newspapers with regard to these cartoons, but also by the concerted efforts within our country, from the Bush Administration, to intimidate and suppress anti-government journalism.

Wednesday, February 22, 2006

NSA scandal and Portgate - a perfect match

When this port controversy erupted yesterday, I thought that it might be prudent to wait a few days before activating the focused, state-based campaign designed to influence the NSA investigations which Jane Hamsher, John Amato and I described a couple of days ago. I originally thought that with the media attention focused for the time being on the Administration's growing port problem and seemingly intractable dispute with Congressional Republicans, it might be difficult to induce people to pay attention to the NSA scandal until the port dispute settled down a little.

But after thinking about it more and talking further with those who have begun to participate in our project, I actually think the reverse is true -- that the serious split between the Administration and their formerly compliant Congressional allies is, for many reasons, the perfect framework in which to press for real Congressional investigations into the NSA scandal. The emergence of this sharp wedge between the Congress and White House, as well as the distrust of the White House which the port controversy is generating, create the ideal groundwork for agitating for Congressional investigations.

The principal argument which has been invoked by the President's apologists for suppressing investigations -- namely, that we should blindly trust the President on national security matters and that Congress has no business investigating the President's decisions concerning the "war on terror"-- is entirely obviated by the port controversy. In response to demands for an NSA investigation, it will now ring intuitively false for any Republican Senator to claim that Congress has no role to play, or that the Administration should be trusted with no oversight, when it comes to making decisions about how to defend the nation.

After all, the spectacle playing out in front of everyone's eyes is precisely the opposite -- namely, Congressional Republicans are insisting that they need to intervene in the decision-making process of who will control our ports precisely because the Administration has exercised such poor judgment and cannot be trusted to operate without Congressional oversight. In many ways, this conflict between Congressional Republicans and the Administration is the perfectly constructed antidote for the noxious excuse we've been hearing (from Pat Roberts, among others) that Congress should not bother the White House about any decisions which the President makes relating to defense of the country.

Beyond that specific point, this port controversy represents yet another instance where the Administration expressed its transparent contempt for the notion that Congress has any real role to play in our system of Government other than giving symbolic endorsement to the dictates of the President. Drenched yet again with the humiliation that comes from being ignored and misled, members of Congress -- including Republicans -- will be in no mood to play the role of meek little rugs which lay quietly on the floor and have no role other than to conceal the Administration's dirt. Helping the White House evade accountability for the NSA scandal by continuing to stonewall investigations would appear to be the very last thing this Congress -- desperate to demonstrate its institutional dignity and independence -- would be inclined right now to do.

In light of all of that, we want to being our laboratory experiment by first targeting Kansas -- because it has a Senator (Roberts) who is probably the single most important person right now in determining whether a Senate Intelligence Committee investigation will proceed; because it has another Senator (Brownback) who is on the Judiciary Committee and has expressed strong objections to the White House's NSA law-breaking; and because we have had a substantial number of Kansans who are very familiar with the political terrain in that state step forward to work with us.

We believe we can develop a potent strategy for generating as much pressure and persuasion as possible towards Roberts (and Brownback) to encourage a meaningful investigation into to the NSA scandal -- not because the Administration should per se be assumed to be guilty of high crimes, but because the NSA program has generated a very intense controversy and Americans ought to know what our Government has been doing with regard to its secret eavesdropping on American citizens.

Only a meaningful Congressional investigation into the operational aspects of the program (obviously with safeguards to prevent disclosure of genuinely classified information) can bring these facts to light. The Administration has repeatedly claimed that it welcomes an investigation; it's time for the Congress to ensure that Americans can know the facts about what happened here.

Jane is working with the people in Kansas who are working on this with us. If you live in Kansas and have connections to that state and want to help, please contact Jane. Over the next couple of days, we hope to have finalized this first step, and will then begin to work on developing a strategy for the next couple of states (maybe Maine, Pennsylvania and/or Nebraska).

The fact that Congressional Republicans have stepped so publicly out of line, questioned the President's judgment with regard to defending the nation, and insisted that they have a serious and important role to play in exercising oversight concerning national security matters, is actually the most encouraging sign yet of the real possibility that there will be serious consequences for George Bush's decision to deliberately violate the law. We want to do what we can to help that process along.